Notre Dame Law School

NDLScholarship
Natural Law Forum

1-1-1957

Contemporary Ethical Theories and Jurisprudence

George Nakhnikian

Follow this and additional works at: http://scholarship.law.nd.edu/nd_naturallaw_forum

Part of the Law Commons
Recommended Citation
Nakhnikian, George, "Contemporary Ethical Theories and Jurisprudence" (1957). Natural Law Forum. Paper 17.
http://scholarship.law.nd.edu/nd_naturallaw_forum/17

This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Natural Law Forum by an authorized
administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.

CONTEMPORARY
AND

ETHICAL

THEORIES

JURISPRUDENCE

George Nakhnikian

of ethical theory have been the ones most heatedly debated

among analytic philosophers since the appearance in 1903 of G. E. Moore's
Principia Ethica. Each type has certain consequences for jurisprudence.
This essay describes the essential features of the theories and points out some
of the readily discernible consequences.
For the sake of clarity, I shall explain how I am using the terms 'jurisprudence' and 'ethical theory' and make some remarks concerning the
relevance of ethics for jurisprudence.
I have adopted Julius Stone's definition of 'jurisprudence' and his threefold division of jurisprudence into analytical, ethical, and sociological. "Jurisprudence," writes Stone, "is the examination of law in the light of other
disciplines than the law." ' The following three main questions may be
asked concerning the law:
FOUR TYPES

(1) What are the definitions and premises which will permit us to
view the contents of the legal order (i.e., the legal propositions or precepts
or any part of them) as a logically (in the syllogistic sense) self-consistent
system? [Analytical Jurisprudence.]
(2) What is the ideal, or what are the ideals, to which we ought to seek
to make the legal order conform? What ought it to do for the men
whose conduct it governs? [Ethical Jurisprudence.]
(3) What are the actual effects of the law upon the attitudes and behavior
of the men whose conduct it governs, and what are the effects of these2
attitudes and behavior upon the legal order? [Sociological Jurisprudence.]
Of these three subdivisions of jurisprudence, only the first and the second
are directly affected by ethical theory.
Contemporary ethics in turn divides into ethical theory and normative
ethics. Ethical theory concerns itself with such questions as these: What is
the semiotical status (roughly, the "meaning") of ethical words such as
'good,' 'right,' 'duty,' 'obligation'? Can any one of such terms be an adequate
primitive for defining the rest? Can ethical terms be defined in nonethical
1.

Juuius STONE, Tnz PROVINCE AND FuNCTION OF LAw 25 (Harvard, 1950).

2.

Id. at 30-43 and passim.

GEORGE NAKHNIKIAN

terms? Are ethical sentences judgments capable of being true or false? Are
they, like the statements in the field of the natural sciences, confirmed or
"disconfirmed" by the evidence obtained from experimentation and observation? These and similar questions which may be asked in ethical theory are
questions about the typical meanings or standard functions of, and logical
connections among, certain words and sentences. They are not questions
about what we ought to do or what we ought to value.
Questions about what we ought to do and value are normative questions.
Traditionally such questions have been regarded as belonging to normative
ethics or moral philosophy. Normative ethics is that branch of philosophy
which seeks to discover, justify, and communicate normative principles (rules
of conduct, rules enjoining certain kinds of disposition, etc.) which are
objective.3 These are some familiar examples of purportedly objective
principles about values and obligations: Happiness is the highest good; Truth
telling is an unconditional duty; Whenever a conflict exists between one's
prima facie obligation to keep a promise and his prima facie obligation to
relieve suffering, the latter obligation is his actual duty. Whether or not a
normative principle is objective and in what sense objective is one of the
problems of ethical theory. Those who deny that normative ethics is a
theoretical investigation (i.e., an investigation capable of yielding objective
conclusions) do not deny that we utter moral judgments. What they in
effect deny is that such utterances are objective. The issues here involved
will be explained below.
Any conclusion reached regarding the objectivity of normative utterances
has certain consequences for the status and procedures of ethical jurisprudence.
If we accept a philosophy which countenances normative ethics, in our
ethical jurisprudence we shall have to look for philosophically established
norms by which to criticize legal norms. This is a logical consequence of
our definitions of 'jurisprudence' and 'normative ethics.' The appeal to
natural law as the justifying ground of legal rules is a case in point. Natural
law theories seek to prove (a) that normative ethics is a theoretical discipline,
a kind of science, and (b) that from purely factual premises, be they scientific
or metaphysical, it is possible to come to ethical conclusions. It is held that
the factual premises are not merely psychologically persuasive. They are
logical reasons for accepting the ethical conclusions. Every one of the ethical
3. The notion of objectivity is complicated by the many senses of the word "objective."
For our purposes, we shall take it that a principle is objective if, and only if, there are
justifying grounds for adopting it. Moreover, those justifying grounds must entitle us to

say truly that the principles they justify are criteria for criticizing the ethical validity of a
given moral code. For, unless this second condition is satisfied, we can criticize principles
only within a moral code. We can never criticize a moral code as a whole.

NATURAL LAW FORUM

theories that we shall describe presently accepts or rejects one or both of

these closely related themes of natural law theories. Naturalism accepts both.
It takes the passage from the factual to the ethical to be deductive, provided
certain naturalistic definitions (what these are will be explained below) are
conjoined to the factual premises. Intuitionists and Neo-Kantians admit
(a) but deny (b). All varieties of non-cognitivism deny (a); and all but
one deny (b). The exception is that group of Oxford philosophers who
take the passage from the factual to the ethical to be neither deductive nor
inductive. They regard the logic of moral reasoning as sui generis. A
paradigm of this position is found in Stephen Toulmin's An Examination
of the Place of Reason in Ethics. The implications of Oxford ethical theories
for natural law will be discussed in some detail below. This initial and
summary statement is intended to illustrate how crucially ethical jurisprudence
is affected by disputes at the level of ethical theory.
If normative ethics is rejected, we have two alternatives regarding the
questions which delimit the province of ethical jurisprudence.
The first alternative is to change the question: "What are the ideals to
which we ought to make the legal order conform?" to "What are the ideals
to which we in fact make the legal order conform?" This procedure eliminates ethical jurisprudence in favor of sociological jurisprudence. The interesting theoretical questions now are not requests for a "rational," "cognitive,"
"objective," "universal and necessary" demonstration of the validity of some
legal norms in contrast to others. They are, rather, requests for the causal
explanation of legal norms by appeal to their source in such factors as the
will of the electorate or the dynamics of individual and social psychology or
autonomous cultural determinants. These are empirical, not philosophical,
matters. This is in effect the position of logical positivism in philosophy, and
legal positivism in the law.
The second alternative is to change not the question but the logical status
of its answer. The champions of normative ethics look upon normative
rules as, through and through, valid or invalid. It is possible to deny this
while agreeing with friends of normative ethics (a) that the normative question of ethical jurisprudence is meaningful and irreducible to the sociological
question of the first alternative, (b) that the problem of validating legal
norms is theoretically interesting and irreducible to causal explanation, and
(c) that it is logically impossible to validate legal norms without recourse to
other norms. Within the framework of the second alternative, then, the
issue between the friends and foes of normative ethics is not whether or not
legal norms require other norms for their validation. The issue is over the
objectivity of the validating norm. Is it a judgment (i.e., an assertion,

GEORGE NAKHNIKIAN

something capable of being true or false) pure and simple, or is it partly

a judgment, partly something else, or is it in no way a judgment?
The critics of normative ethics say that norms are not judgments, pure and
simple, hence they are not philosophical judgments, pure and simple. Therefore, there are no answers to the questions of ethical jurisprudence that are
simpliciter, philosophically true or false, valid or invalid.
To sum up, ethical theory is needed whenever a question arises concerning
the legitimacy of normative ethics. The status of normative ethics, in turn,
affects the status of ethical jurisprudence. If normative ethics is admitted,
ethical jurisprudence must find the answers to its questions in philosophy.
If normative ethics is rejected, according to the first alternative the questions
of ethical jurisprudence are badly put, unanswerable or senseless, or their
answers are false. According to the second alternative, their answers are
not objective.
Ethical theory has consequences also for analytical jurisprudence. A
common neutral ground between ethical theory and analytical jurisprudence
is the study of normative locutions. Are normatives reducible to descriptives?
Is the word 'normative' in 'ethically normative' and 'legally normative' merely
a homonym? Or are legal and ethical locutions, qua normative, alike? The
ethical theorist has no monopoly on these problems. A student of analytical
jurisprudence could with equal propriety seek their solution. This means
that ethical theorists could learn from the work of analytical jurists, and
conversely. It is the converse relation that interests us here.
Having introduced our topic with some terminological assumptions and
with some general remarks on the relation of ethics to jurisprudence, we now
turn to describing the essential features of the currently most influential types
of ethical theory and their consequences for ethical and analytical
jurisprudence.
I
Contemporary ethical theories may be classified into four types: natural4
ism, intuitionism, non-cognitivism, Neo-Kantianism.
The fundamental theses of naturalism are these. (1) Ethical sentences
are genuine judgments (capable of being true or false). (2) The truth or
falsehood of ethical sentences is established by methods of experimentation
and observation characteristic of the natural sciences. (3) Ethical words
are definable in terms of words that refer to scientifically discriminable
4.

See Frankena, Moral Philosophy at Mid-Century,

(1951).

60 PHILOSOPHICAL REVIEW 44

NATURAL LAW FORUM

properties of objects or states of affairs.5 These are the only articles on
which there is universal agreement among naturalists. In matters of detail
there are almost as many disagreements as there are individual naturalists.
Intuitionists6 assert (1), but deny (2) and (3). Non-cognitivists include
the logical positivists, 7 C. L. Stevenson-who must be listed separately
because he resists easy classification-and the contemporary Oxford philosophers of ordinary language. Among the positivists, Stevenson, and the
Oxford philosophers, the agreements are more significant than the disagreements. The logical positivists and Oxford philosophers deny (1), (2), and
(3), but for different reasons and with different implications. Stevenson
denies (1), (2), and (3), but not without important qualifications. The
Neo-Kantians cannot be easily characterized with reference to (1), (2),
and (3).
I shall present, as a paradigm of their position, certain aspects
of C. I. Lewis's views.
Let us now try to amplify the foregoing characterizations. The naturalist's joint assertion of (1), (2), and (3) amounts to saying that normative
ethics is an empirical study. The usual procedure is to begin by trying to
show that (3) is true. This is the crucial step. For if (3) is granted, then
(2) follows from it, and (1) follows from (2). Suppose, for example, we
define 'X is intrinsically good' as 'X is desired for its own sake by a normal
observer'-where by 'a normal observer' we mean an observer whose factual
judgments are reliable-and define 'X is extrinsically good' as 'X is causally
necessary for realizing the intrinsically good.' Next, if we assume that
psychologists can (actually or potentially) tell when an observer is desiring
something for its own sake, and if we assume that we have rough and ready
but workable operational criteria for deciding the normality of an observer
and of the conditions of observations, then questions as to de facto intrinsic
goods and extrinsic goods become empirical. Thus, value judgments turn
out to be verifiable. Building on this foundation, one might then define
'ought,' perhaps, in terms of 'good' (e.g., 'X ought to be done' meaning
'X is a duty' might be construed as 'X is conducive to the realization of
5. Thus we can explain a naturalistic definition as one which satisfies (3). There is a
wider sense of the word "naturalistic" than the one here used. This is the sense defined by
C. D. Broad in Some of the Main Problems of Ethics, 21 PHILOSOPHY 99 (1946).

In

this sense, any ethical theory is naturalistic if it claims to define ethical words by nonethical
words, scientific or otherwise, and/or claims to derive, deductively or inductively, ethical
sentences from nonethical sentences, scientific or otherwise. In this sense of the word, a
theological ethics which defines 'X is good' as 'X is what God wills' is naturalistic. According to the usage here adopted, however, John Dewey is an ethical naturalist; a theological
ethical theorist is not. We could equally well render this sense of "ethical naturalism" by
the label "ethical empiricism."
6. E.g., A. C. Ewing, C. D. Broad, G. E. Moore, Sir David Ross.
7. E.g., A. J. Ayer, R. Carnap.

GEORGE NAKHNIKIAN

maximum good'), so that statements about duties would also turn out to be
empirically verifiable.
If naturalistic ethical theories are correct, their first consequence is that
normative ethics is possible. If ethical judgments are cognitive and empirical,
they can be discovered, justified, communicated by the same devices as those
used in the physical and social sciences. Reasonable men can debate matters
of moral principle objectively, antecedently assured that in time agreement
can be achieved on what is true or false in morals. For even a general first
principle of normative ethics such as the principle of utility is put forth by
some naturalistic moral philosophers not as an arbitrary axiom nor as a selfevident truth, but as an empirically justifiable "hypothesis." Being a first
principle, the utility principle cannot be deduced from a more basic principle.
But there may be other ways of empirically "justifying" first principles. "Is
the principle of utility susceptible of any direct proof?" asks Bentham. "It
should seem not: for that which is used to prove everything else, cannot itself
be proved: a chain of proofs must have their commencement somewhere.
To give such proof is as impossible as needless." 8 Nevertheless, the utility
principle can in some manner be justified. A moral principle has to be
practical; it has to be capable of determining and guiding conduct by resolving conflicts among less general principles. Bentham's argument in favor of
the utility principle simply comes down to this. Since human beings are (i)
motivated by desire for pleasure and aversion from pain and (ii) capable of
unselfish conduct, the Principle of Utility is the only principle which can
function as an ultimate norm. There is no other principle which could be
ultimate and practical. 9 More generally speaking, Bentham's "proof" may
be phrased as follows: Given the data of morality, including moral disagreements and the disputes they engender, the utility principle is the most useful
"hypothesis" so far proposed for systematizing the data of morality coherently
among themselves and in relation to nonmoral facts, as well as for providing
a psychologically realistic regulative principle for the undogmatic and reasonable discussion of moral disagreements.
Whether Bentham's defense is cogent or not is not here in question. What
interests us is (1) the considered opinion of a representative naturalistic
moral philosopher that first principles of conduct can be justified; and (2)
the proposed manner of justification, which is very different from the a priori
8. J. BENTHAM, INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION C. 1,
para. 11.
9. Cf. Hall, The "Proof" of Utility in Bentham and Mill, 60 ETHICS, No. 1 (Oct., 1949),
esp. pp. 13 ff. Also my Intrinsic Good and the Ethical Ought, 51 JOURNAL OP PHILOSOPHY
788 (1954), esp. pp. 792-94. Also my Value and Obligation in Mill, 62 ETHICS 33 (1951).

NATURAL LAW FORUM

Kantian method of transcendental deduction. 10 Since naturalistic ethical

theory countenances normative ethics, naturalistic ethical jurisprudence would
have at its disposal a set of objective and empirically arguable moral principles. By appealing to these moral principles questions as to what sorts of
laws should exist could be answered objectively and by empirical methods
of validation. There would be no need for appeals to divine law, self-evident
moral intuitions or ultimately unreasoned and arbitrary decisions. This does
not mean that a first principle, such as that of utility, would be able to settle
all moral issues in detail. According to at least one commentator, Bentham
himself offers his principle of utility as a "hypothesis which does not dogmatically settle all concrete ethical issues but opens a critical discussion of them."' 11
Moreover, the analytical jurist can argue that if moral terms can be
defined in empirical terms, so can legal terms. For the particular hurdle
naturalism has to clear is the normativeness of ethical terms. If naturalism
can define ethical terms by empirical terms, it can, a fortiori, do the same
thing with legal terms. The one additional premise we need to establish is
that whatever their differences, legal and moral terms are alike normative.
At this stage it would be appropriate to explore the possibility of codifying
legal systems. By codification we are to understand not the legal practice
of writing law into documents but the logical procedure of trying to make
explicit the formal structure of the law. This, in turn, depends on one's
conception of law. If the conception is Austinian or Kelsenite, the analytical
jurist will try to do for the law what Whitehead and Russell did for mathematic& In the PrincipiaMathematica they showed that all mathematics is
deducible, in accordance with certain rules of inference, from a finite number
of axioms whose undefined terms are a finite number of logical words and
the relation of class membership. The corresponding task for the law, if it
is naturalistically analyzed, would be to take a legal domain, e.g., English law,
and to show that a set of mutually consistent axioms logically imply all (or
perhaps only restricted classes of) the statements of the domain, and that
the undefined (primitive) terms of those axioms, apart from the logical ones,
are empirical. The former accomplishment would prove that the axioms in
question delimit the domain of English law. The latter accomplishment
would prove that English law can be naturalistically analyzed. At the outset,
it may not be assumed that the same logical structure will satisfy different
10. An account of the nature of Kant's transcendental deduction is to be found in H. J.
PATON, THE CATEGORICAL IMPERATIVE 27-29 (Chicago, 1948). Kant's manner of justifying
moral principles is nonempirical. Another nonempirical way of arguing for the validity of
moral principles is C. I. Lewis's. See below.
11. D. BAUMGARDT, BENTHAM AND THE ETHICS OF TODAY 147, 529, 530 (Princeton,
1952).

GEORGE NAKHNIKIAN

legal systems. For example, the logical structure of English law may not
coincide (be isomorphic) with that of German law. One would first have
to codify logically restricted legal domains and then look to see whether
or not the logical structures they exhibit have anything in common.
There are serious reasons for doubting that legal domains are capable of
logical axiomatization in the way that mathematics is. There are competent
scholars who aver that by its nature the law is disjointed, loosely knit and
"unfinished," in ways that mathematics is not. At any rate, no one to date
has attempted a rigorous axiomatization of legal domains. But the issues
involved have not been fully explored; and until they are, the question must
remain open. This is one of the principal problems of analytical jurisprudence.
II

Naturalism, however, has not gone unchallenged. In a happy metaphor,

Professor Rice 1 2 describes how blows have been showered on it from overhead by supematuralistically inclined philosophers, from the Right by the
intuitionists (including Moore, Broad, Ross, Ewing), and from the Left
by the non-cognitivists (Carnap, Ayer, Stevenson, and the Oxford ordinary
language philosophers).
The opposition has challenged naturalism at the first step, the step of
defining ethical terms in nonethical terms. The challenge has been salutary,
having forced naturalists to work hard at certain logical and semiotical issues
which they had more or less slurred over. But my aim is not to tell that
part of the story, except as it has to be told while we are about our main
business, namely, to report on these conflicting contemporary ethical theories
and what they entail for jurisprudence.
The intuitionists have criticized naturalistic definitions of ethical terms
on the ground that in such definitions the defining phrase does not carry the
normative force of the term being defined. The term 'X is good' or 'X is
right' has a normative force which, they say, does not appear in .'X is pleasant'
or 'X is satisfying' or 'X is desired for its own sake under normal conditions.'
G. E. Moore uses the "open question argument" to make this point. If someone were to say "X is pleasant," it always makes sense to ask: "But, after all,
is X good?" Were 'X is pleasant' to exhaust the meaning of 'X is good,'
that question would make no sense. For it would reduce to "But, after all,
is X which is good, good?"
12.

P. B. Rice, Ethical Empiricism and its Critics, 62 PHILOS. REv. 355 (1953).

NATURAL LAW FORUM

Moore's open question argument relies upon two basic philosophical

principles. The first of these says that to be clear about what goodness is
is to be clear about the meaning of the word 'good' as it is used in evaluative
discourse. This principle presupposes that a correct analysis of 'good' would
be a transcription of everyday usage. Naturalistic analyses, on the other
hand, are proposed not as reports of how people actually use the word 'good'
evaluatively, but what they would mean by 'good' if they examined their
ideas critically. Naturalists are reconstructionists. For them, part of the job
of philosophy is to reconstruct language, i.e., to make linguistic proposals
which are not mere transcriptions of everyday discourse. Moore is not a
reconstructionist.
The second principle underlying Moore's open question argument says
that to be clear about the meaning of the word 'good,' one must reflect carefully to discover the attribute or property named by the word. This principle
presupposes that 'good' is a property word, like 'red.' The naturalists also
assume that 'good' is a property word, but they deny that it names a nonnatural property. The non-cognitivists deny that 'good' is a property word
at all in evaluative contexts. Those of the Oxford wing agree with Moore
that philosophical analysis consists in faithful transcriptions of linguistic
usage. But they modify Moore's first philosophical principle as follows: To
be clear about what goodness is, or what truth is, or what necessity is (as
against knowing that red, ripe, sweet strawberries are good, or that 'Electrons
have a negative electric charge' is true, or that it is necessary that Monday
follow Sunday), is to be clear about the ways in which the words 'good,'
'true,' 'necessary,' etc. are used in our language. This modification, which
talks about 'use' and de-emphasizes meaning and regards as mistaken in
principle Platonistic, phenomenological or mental-state theories of meaning
3
is the result mainly of Ludwig Wittgenstein's influence.'
Moore and intuitionists in general hold that they have an immediate
awareness of nonidentity in meaning between an ethical definiendum and its
naturalistic definiens. In the contemporary atmosphere of empiricism and
its concomitant mistrust of rational intuitions the intuitionist point against
naturalistic definitions of ethical terms might have made less of an impression
on naturalists, had not the non-cognitivists raised the same objection without
appealing to rational insight into meaning relationships. That objection is
that the definiens and definiendum of a naturalistic definition are not syn-

13. See his book, PHILOSOPHICAL INVESTIGATIONS (Macmillan, 1953). For an illuminating commentary on Wittgenstein's attack on Platonistic theories of meaning, see Paul
Feyerabend, Wittgenstein's Philosophical Investigations, 64 PHILOS. REv. 449 (1955).

GEORGE NAKHNIKIAN

onymous. How non-cognitivists argue this point will be explained in some

detail below.
The naturalists have thus been forced to pay close attention to the problem
of showing that the two sides of a naturalistic definition are alike normative.
If the definiendum, e.g., 'X is good,' is normative and the definiens, 'X is
pleasant' or 'X is desired under normal conditions,' is empirical; and if
the empirical is ipso facto non-normative, then the anti-naturalists are right:
no naturalistic definition can be correct. Some naturalists have tried to meet
the objection by expanding the definiens of 'X is intrinsically good' into a
complex predicate, e.g., 'X is desired for its own sake under normal conditions.' The explicit reference to the desired ('for its own sake') has seemed
to them to carry the normative force of the definiendum, and the reference
to the desired under cognitively trustworthy conditions ('under normal conditions') has seemed to distinguish rationally defensible valuations from those
which are capricious and to strengthen further the normative force of the
defining phrase. The underlying presumption is that to desire something
is to find it prima facie worth desiring. And to desire something for its own
sake under cognitively trustworthy conditions is to find it de facto worth
desiring. Such a definition, in short, is proposed because it is presumed to
provide a criterion for rationally justifying evaluations and because it presumably injects into its definiens a normative force equal to that of the
definiendum.
The intuitionists are not mollified by these emendations. They concede
that pleasantness or being desired under normal conditions are "good-making
characteristics," but they are not identical with good-ness. Goodness, obligatoriness, right, and the like are sui generis. They are properties objectively
qualifying things or situations. But they are not sensorily discriminable
(empirical) properties. If we call the empirical properties of the naturalists
'natural properties,' then goodness, obligatoriness, and rightness are nonnatural properties.
The theory of nonnatural properties accomplishes the following things.
It provides irreducible normative properties as the referents of irreducibly
normative ethical words. It preserves the truth-values of normative ethical
judgments without reducing them to the empirical. It provides a connection
between good-making and ought-implying natural characteristics on the one
hand and nonnatural normative characteristics on the other hand without
identifying the former with the latter. According to G. E. Moore, to say a
characteristic is ought-implying, means "[it is] such that, when a state of
affairs possesses it, then the fact that an action, which an agent would do,
would produce that state of affairs is favorably relevant (though only in a

NATURAL LAW FORUM

14
very weak degree) to the hypothesis that the agent ought to do that action."
For example, conduciveness to the alleviation of suffering is ought-implying.
The intuitionists concede that some natural properties are intimately connected
with moral values. But the intuitionists also insist that these natural properties
are not identical with moral values.
The nonnatural normative properties and their connections with goodmaking and ought-implying characteristics are said to be known by an a
15
priori rational intuition. The connection is synthetic a priori.
The intuitionist position in ethical theory may be summed up as follows:
(1) Ethical sentences are judgments, being either true or false. (2) Their
truth-value is known independently of any experimentation or observation
characteristic of the natural sciences; they are known a priori,non-inferentially
by an immediate rational intuition (they are synthetic a priori). (3) Ethical
words, e.g., 'good,' 'right,' name nonnatural objective normative properties;
they are not definable by words referring to empirical properties.
If ethical intuitionism is true, jurisprudence is committed to rationalism.
The consequence for ethical jurisprudence, then, is this: the questions of
ethical jurisprudence have true or false philosophical answers because
intuitionism entails the legitimacy of normative ethics. The answers will be
synthetic a priori judgments.
Intuitionism has consequences also for analytical jurisprudence. Let us
recall that analytical jurisprudence is partly concerned with definitions of
legal terms and with identifying legal premises. Assuming that legal terms,
like ethical terms, are normative, intuitionism entails the wholesale removal
from analytical jurisprudence of all attempts to define legal terms empirically.
To account for the normativeness of legal terms, an intuitionistic analytical
jurisprudence would either have to posit nonnatural legal properties analogous
to nonnatural ethical properties, or it would have to define legal terms by
ethical or otherwise normative terms. Basic legal premises, because they
contain empirically irreducible extralogical vocabulary, could not be regarded
as empirically factual statements. They would have to be construed as
synthetic a priori judgments.
14. THE PHILOSOPHY OF G. E. MOORE, 603-604, 556, 596 ff. (P. A. Schilpp ed., Northwestern, 1942).
15. The synthetic a priori is a technical notion in rationalistic epistemology. Whether
there are synthetic a priori judgments is a moot question in philosophy. Those who accept
synthetic a priori judgments say that they are nontautological yet necessary judgments
whose truth or falsehood is known by an act of reason independently of experience. In
effect, they are saying that there can be a necessary though factual connection between at
least two factors, the necessity of which connection is seen in a pure rational insight. That
the same surface cannot at the same time be blue and yellow all over is often given as an

example of a synthetic a priori truth (a synthetic a priori judgment that is true).

GEORGE NAKHNIKIAN

Let us illustrate these points by applying intuitionism to Kelsen's pure

theory of law. One may suppose that the basic premise, or basic norm (in
Kelsen's terminology), of English law runs something like this: "What the
King in Parliament has promulgated or authorized or permitted to be promulgated as law ought to be observed." 16 This is a normative sentence, irreducible, by Kelsen's showing and by intuitionist standards, to an empirical or
otherwise descriptive sentence. It is not a simple report of how the English
make laws. Nor is it a report of what laws the English observe. There are
plenty of lawbreakers in England. Now for Kelsen the basic norm is not
cognitive. At any rate, he leaves that question open. As an analytical jurist
the validity which he assigns to the basic norm is that of a "hypothesis" or
unifying principle, which is not true or false but either useful or useless. It
is useful to the extent that the subsidiary norms of the system can be
hierarchically derived from it.
The basic norm contains an "ought." In our example, what the King
decrees "ought to be obeyed." This occurrence of 'ought' is extralegal. For,
in a Kelsenite framework, the basic norm's 'ought' cannot be interpreted to
mean 'legally ought,' because the legality of a law is relative to its validity
in a legal hierarchy. We need the basic norm before we can tell which are
the laws of the legal system. In other words, 'legally ought' (in a Kelsenite
framework) means 'that which is derivable from a norm in a legal hierarchy.'
But since the basic norm is, by hypothesis, (legally) underived, its 'ought'
cannot mean 'legally ought.'
Unless there is an extralegal 'ought,' the
normativeness of the basic norm remains unexplained.
Intuitionism has an answer to this problem. The basic norm must be
synthetic a priori, for it connects a normative property (an extralegal ought)
with a natural characteristic (being decreed as law by the King in Parliament). Being synthetic a priori, it must be true or false. Therefore, it cannot
be a stipulation functioning as a morally neutral unifying "hypothesis." A
stipulation may be either an empirical prediction (e.g., I shall, as a matter
of fact, use the word X to mean Y) or a resolution (e.g., let us use X to
mean Y). A prediction is factual, hence not normative. A resolution or
command is not true or false, hence not normatively true or false.
As to codifying law, the intuitionism of an analytical jurist (logically)

leaves him free to choose between a monistic codification, such as Kelsen's

and Austin's, or a pluralistic one, such as Hohfeld's. 17 This, as I suggested
above, is a matter to be decided relative to one's view as to the nature of the
legal subject matter.
16.
17.

See Stone, op. cit. supra, note 1 at 94.

For a critical exposition of Hohfeld see Stone op. cit. supra, note 1, c. 5.

NATURAL LAW FORUM

III
Next on our list are the non-cognitivists. This group consists of the Logical
Positivists, C. L. Stevenson, and the Oxford philosophers of ordinary language
('Oxford philosophers' for short).
The Logical Positivists are typically represented by A. J. Ayer in his
Language, Truth and Logic. Ayer agrees with G. E. Moore and the intuitionists at large that naturalistic definitions of ethical terms are faulty for the
reason advanced by the intuitionists: the normative force of the definiendum
has no counterpart in the definiens. But Ayer's explanation of this is very
different from the intuitionists'. We recall that for intuitionism the normative
meaning of normative words derives from their naming some nonnatural
normative property. Ayer's explanation is that normative words are "pseudoconcepts." They do not name any qualities or relations, either empirical or
logical. And, since for Ayer genuine concepts are either empirical or logical,
ethical concepts are not genuine concepts at all. Normatively functioning
concepts and sentences are "purely 'emotive.'"
For Ayer, there are two
dimensions of meaning, the cognitive and the emotive. The empirically
verifiable and the logically certifiable exhaust the cognitive. All else is
emotive. To say that an expression is emotive means that it either evinces or
arouses an emotion. To evince an emotion is distinct from stating that one
has the emotion. A blush, a yawn, an interjection, a stimulus, "whoa" to
move a horse, a command to a man, "Stand up !"-all are lumped together
into the emotive (non-cognitive) category. They assert nothing, not even
about feelings. They merely evince feeling.
Words like 'good,' 'bad,' 'ought,' 'lovely,' 'worthy,' are, from this view,
like blushes and yawns. "If I say to someone, 'you acted wrongly in stealing
that money,' I am not stating anything more than if I had simply said, 'You
stole that money.' In adding that this action is wrong I am not making any
further statement about it. . . . If now I generalize my previous statement
and say, 'stealing money is wrong,' I produce a sentence which has no factual
meaning-that is, expresses no proposition which can be either true or false.
It is as if I had written 'Stealing money! !'-where the shape and thickness
of the exclamation marks show, by a suitable convention, that a special sort
of moral disapproval is the feeling which is being expressed." IS
Ayer is careful to point out that it is only the normative use of 'X is
18.

A. J. AYER, LANGUAGE, TRUTH AND LooI

107 (2nd ed., 1946).

GEORGE NAKHNIKIAN

good,' 'X is wrong' which he characterizes as emotive. The same form of

words could be used descriptively, as when I say, "In cannibal culture, eating
human flesh is right," meaning that cannibal cultures as a matter of fact
approve of eating human flesh. This is a sociological statement. It is a
non-incitive, descriptive statement. In usual ethical discourse, however,
ethical words are intended not descriptively but normatively. If we are to
give a faithful analysis of actual ethical usage, we must account for the
peculiarly incitive force of ethical words, and the emotive theory does this
without invoking logically inadmissible nonnatural properties or without trying
to define normative words in terms of descriptive words. This, too, is logically
inadmissible because the normative and the descriptive are exclusive (and, in
Ayer's view, also exhaustive). A normative definiendum can never be defined
by non-normative definientia. The logical error here is analogous to the error
of deriving (inductively or deductively) a normative conclusion from premises
all of which are non-normative.
An ethical theory such as Ayer's implies "that ethical philosophy consists
simply in saying that ethical concepts are pseudo-concepts.... There cannot
be such a thing as ethical science, if by ethical science one means the elaboration of a 'true' system of morals. For we have seen that, as ethical judgments
are mere expressions of feeling, there can be no way of determining the
validity of any ethical system, and, indeed, no sense in asking whether any
such system is true. All that one may legitimately enquire in this connection
is, what are the moral habits of a given person or group of people, and what
causes them to have precisely those habits and feeling? And this inquiry
falls wholly within the scope of the existing social sciences." 19
An analytical jurist who accepts a theory such as Ayer's has first to decide
whether legal concepts are straightforward empirical ones or whether they
are something else. If he can demonstrate (and I do not think he can)
that legal terms are just empirical terms, he will show they are defined in
terms of psychology, sociology, economics, political science, culturology or any
other relevant empirical discipline. He will stop calling legal terms
'normative.'
Legal premises, on this view, will be empirical statements, subject to
the rules of formal logic. A jurist who accepts a logical positivistic ethical
theory is likely (though not logically compelled) 2 0 to accept the epistemological orientation positivists share with certain other philosophers. Part of
this orientation is a theory of what philosophical analysis is. It is a linear
19. Id. at 112.
20. B. Russell, for instance, holds an ethical theory like Ayer's. Yet Russell repudiates
many of the epistemological theses of logical positivism.

NATURAL LAW FORUM

affair; its model is Whitehead and Russell's Principia Mathematica. First

comes the discovery of an analytically adequate base. This means an
analytically adequate set of primitive concepts and primitive sentences. An
analytically adequate set of primitive sentences (axioms) is complete, i.e.,
it is sufficient for deriving within the system and by the rules of derivation or
transformation all the theorems in the system. And an analytically adequate
set of primitive concepts is one which is sufficient for constructing a complete
axiom-set. In Quine's Mathematical Logic,2 1 for example, which is in the
Russell-Whitehead tradition, there are three primitive concepts: 'neithernor,' 'each and every' (universal quantifier), and 'X is a member of the
class a.' All the axioms of the system can be written in terms of these
concepts. The (infinite) axiom set of the system is complete for classical
mathematics.
For a (logical) positivistic analytical jurist, who proposes, for some reason
or other, that legal concepts are non-normative, an analytically adequate set
of legal primitives would be a set of empirically interpretable2 2 legal concepts
sufficient for formulating a complete set of axioms for a legal code or parts
of it.
On the other hand, if a (logical) positivistic analytical jurist decides that
legal concepts are, after all, normative, the consequence for analytical jurisprudence will be to treat all legal concepts as emotive ejaculations. From
the assumption that these ejaculations are neither true nor false, we would
have to conclude that we cannot speak of a logical codification of the law.
Ejaculations are not subject to logical manipulation, and at least the general
precepts of the law would be, in this view, mere ejaculations. There is,
however, a way out of this. It calls for an extension of formal logic. Logic,
as conceived by logical positivists, deals with logical relations among statements. Statements are linguistic expressions which are true or false. Within
this narrow conception of logic, linguistic expressions which are not statements
cannot be handled logically. Although logical positivists have been exclusively
preoccupied with the logic of statements, nothing in their general orientation
forbids an enlarged logic. This would be a logic in which normatives as well
as indicatives could be handled in accordance with certain well defined rules.
Here, for example, is a standard valid argument all sentential components
of which are indicative statements:
21. I omit here certain refinements of statement which would be necessary in a precise
description of the system.
22. As legal primitives, the concepts would be undefined within the legal code. But,
since we are working here on the assumption that legal concepts are empirical, there should
be, if not explicit definitions, at least operational specifications of how the legal primitives
are to be given empirical interpretation.

GEORGE NAKHNIKIAN

All those boxes will go to the storeroom.

This is one of the boxes.
Therefore, this will go to the storeroom.
There are well-known standard rules for determining the validity of this
inference. Suppose now we argue as follows:
You should take all the boxes to the storeroom.
This is one of the boxes.
Therefore, you should take it to the storeroom.
The logic of logical positivists has no rules for handling this. One of
the premises and the conclusion are non-indicative (normative). Yet this
is typical of the sort of argument that occurs in the language of morals and
the law. From a legal norm together with a relevant factual premise we draw
a conclusion of law (normative).
Such inferences can be assimilated into deductive (and inductive) logic
provided that to the rules of the existing logic of indicatives are added suitable
rules for manipulating non-indicatives as well. Logical positivists can go about
constructing such a logic by introducing syntactical rules 28 for drawing purely
syntactical distinctions between indicatives and imperatives (normatives, in
general). Ayer's characterization of normative utterances as emotive ejaculations is pragmatic. In pragmatics, his theory does not discriminate (and
this is a mistake) functionally between an ethical utterance and an involuntary
ejaculation.2 4 But Ayer's position does admit of drawing a syntactical
distinction between the imperative 'You should take the boxes to the storeroom' and the indicative 'All the boxes are going to the storeroom,' as some
philosophers have done.
Thus, Ayer's position in ethical theory can be made to allow codification
in analytical jurisprudence. The normative elements in the code, when
interpreted, would have only "emotive" meaning and would not be true or
false. But they would be, syntactically, subject to rigid logical canons.
As to ethical jurisprudence, whether legal concepts are treated as purely
descriptive or as purely emotive will make no difference. The ethical theory
of logical positivism implies that normative ethics cannot be a theoretical
discipline. Therefore, no question can arise as to the relation between
normative ethics and ethical jurisprudence. What are the ideals to which
23. A syntactical rule is prescriptive about typographical shapes. For example, "the word
ought' is to be taken as an abbreviation for 'it is not the case that may not'" and " 'p' and
q' are to be taken as atomic formulae" are syntactical rules. They make no mention of how
the typographical shapes are to be interpreted in terms of extralinguistic reference.
24. For a thoughtful criticism see John Dewey, Theory of Valuation, 2 INTERNATIONAL
ENCYCLOPEDIA OF UNIFIED SCIENCE, No. 4 (Chicago, 1939).

NATURAL LAW FORUM

we ought to make the legal order conform? If taken as a normative question,

it is really a pseudo-question. Grammatically it is a request for information.
Semiotically, it is an inciter, a stimulus which normally would evoke responses
including normative utterances. But, according to the theory, these are on
a par with involuntary ejaculations. There is no question here of a rational
debate as to the merits of one ethical injunction over another. If "We find
that ethical philosophy consists simply in saying that ethical concepts are
pseudo-concepts," 2 5 then we must conclude that ethical jurisprudence consists
simply in saying that the questions it poses are pseudo-questions.
To sum up, the student of jurisprudence who adopts the ethical theory of
logical positivism and who also decides that legal concepts are normative
must regard ethical jurisprudence as a non-theoretical discipline. The answers
to its questions are non-objective. He will do sociological jurisprudence, and
he may also do analytical jurisprudence, but only after he has worked up
a syntactical system of logic suitable for logically manipulating syntactically
normative forms.
Charles L. Stevenson's Ethics and Language2 6 defends a view akin to
but not identical with the ethical theory of logical positivism. Ayer denies
that there are irreducibly ethical disagreements. All ethical disputes are
carried on within a framework of moral presuppositions which themselves are
beyond dispute. "What we do not and cannot argue about is the validity
of these moral principles. We merely praise or condemn them in the light
of our own feelings." 2 7 Every argument on a question of value is reduced
to an argument about a question of logic or about an empirical matter of fact.
Ayer never says what criterion distinguishes "ethical" or "moral" feeling
from feelings of other sorts. Stevenson, on the other hand, has an elaborate
theory on this subject. He locates the distinctively ethical in attitudes which
are contrasted to beliefs. Ethical disagreements are genuine and irreducible.
They are disagreements in attitude. In agreement with the logical positivists,
Stevenson regards questions of belief to be questions of logic or of empirical
fact. Attitudes, on the other hand, have to do with purposes, desires, interests,
preferences and the like. When two people have an ethical disagreement,
in Stevenson's view this means simply an opposition of attitudes. For in
ethics we deal with agreements or disagreements in attitudes.
A value judgment 'X is good' means (roughly, but essentially), 'I approve
of X. Do so as well.' This is a compound statement. One component is an
indicative sentence giving factual information (capable of being true or
25.
26.
27.

Ayer, op. cit. supra, note 18 at 112.

Yale University Press, 1944.
At 111-112.

GEORGE NAKHNIKIAN

false). The second component is an imperative. Now we can see why

Stevenson does not simpliciter deny the three fundamental theses of a naturalistic ethics. The definiens is not simply a factual statement. Neither is it
simply a command or imperative. A value judgment is a complex thing. In
addition, Stevenson uses 'meaning' as follows: the meaning of a sign is its
capacity to arouse certain kinds of psychological responses. If the responses
are cognitions, the sign is said to have descriptive meaning. When the
responses are attitudes, the sign is said to have emotive meaning. The word
'good' has a complex meaning. It is partly emotive, partly cognitive. The
distinctively normative or ethical meaning of good, however, is its emotive
meaning: ".... an ethical judgment can be true or false, but ... its descriptive truth may be insufficient to support its emotional repercussions." 2 8
Are all ethical disagreements (disagreements in attitude) rooted in disagreements in belief? Stevenson thinks that they are not. Nevertheless, the
changing of one's beliefs is very often the determining of changes in one's
attitudes. So, there is a strong connection between questions of belief and
questions of attitude. But, factual or otherwise, rational appeals have no
privileged position. For the distinction between valid and invalid, cogent
and incogent applies only to inductive or deductive proofs. Ethical reasoning,
in which an ethical conclusion is supported by factual premises, is neither
inductive nor deductive. (This is so because no valid deductive and no
cogent inductive argument can exist if its conclusion is normative while its
premises are not.) Inferences from factual reasons to ethical conclusions,
rather than being either valid or invalid, are either successfully persuasive
or unsuccessfully persuasive. Being a civilized man, Stevenson himself prefers
rational methods to nonrational ones. But he maintains that we have no
reason for saying that every disagreement in attitude is grounded in a disagreement in belief. Therefore, we cannot say that where an ethical disagreement exists, there is always a way of dissolving it by appeal to factual
considerations.
In spite of similarities, there are differences between Stevenson and the
ethical theory of the logical positivists. The important similarity is that for
both theories the normative is the emotive. But for Stevenson, the same
sign functions in part descriptively and in part emotively, while for the logical
positivists, if a sign is functioning emotively, it cannot at the same time and
for the same interpreter function descriptively. A second important difference
is that the logical positivists, as exemplified by Ayer, leave unspecified the
differentia of "moral" or "ethical" feeling. Stevenson devotes close analysis
28.

ETHICS AND LANGUAGE

267 (1944).

NATURAL LAW FORUM

to this in terms of an attitude-belief distinction. Thirdly, the positivists

regard the notion of ethical reasoning as meaningless. Stevenson regards it
not as meaningless, but as being on a par with nonrational persuasion. It has
already been stated that in the languages of ethics and law inferences are
drawn from premises (some of which are normative) to conclusions which
are normative. It has been suggested that a suitably enlarged formal logic
would enable logical positivists to recognize such inferences and appraise their
logical cogency as a matter of syntax. The same is true of Stevenson. But
there is another class of ethical inferences. In these, ethical conclusions are
supported by nonethical premises. For instance: "You shouldn't come in
with muddy shoes because mommy just scrubbed the floors," would be a
good argument if addressed to a child. We can see that it is a good argument
for a child if we contrast it with ".

. because we bought the linoleum from

Sears." Philosophers who recognize arguments of this type admit that they
are neither deductive nor inductive. They call such arguments ethical inferences. Now the logical positivists would rule out as meaningless such ethical
inferences, because for them an inference is either inductive or deductive.
Stevenson does not go this far. He agrees with the logical positivists that
this type of inference is not subject to the valid-invalid distinction. But this
fact does not make meaningless the very concept of this sort of inference.
Instead of trying to include these patterns of inference among the formal
deductive or inductive patterns, he classifies them as persuasive patterns.
Factual reasons are often powerfully persuasive. They are successful in
redirecting attitudes. Roughly, in a logical argument, the end result is a
cognition. In a persuasive argument the end result is an attitude.
On the whole, the consequences of Stevenson's ethical theory for jurisprudence are the same as those of logical positivism. For analytical jurisprudence, the consequences are these: any adequate analysis of normative
legal concepts must take into account their emotive meaning. There are
no natural or nonnatural normative properties. The normative function of
normative legal terms and of normative legal principles is determined by their
capacity to arouse attitudes in interpreters. So far in the analysis, there is
no reason why the syntax of the language of the law could not be formalized,
or why we should not codify as much of the legal system as lends itself to
codification within a formal logic sufficiently enriched to handle sentences of
the imperative family.
Stevenson's theory rules out normative ethics as a theoretical discipline.
The answers to the ethical jurisprudential questions are not contained in
some objective ethical norms, but rest in some persuasive methods whereby
it is hoped agreement in attitudes can be reached.

GEORGE NAKHNIKIAN
Let us now proceed to the Oxford philosophers. I have included the
Oxford ordinary language philosophers among the non-cognitivists because
they deny the central theses of naturalism and intuitionism. In this they
agree with Stevenson and the logical positivists. Oxford philosophy represents
a revolutionary conception of philosophical activity. Its influence is growing
daily, and its conception of how we should philosophize has far-reaching consequences for the methodology of analytical and ethical jurisprudence. These
are two important reasons for becoming familiar with their views.2
Philosophers of the Oxford persuasion who have written important books
or articles bearing upon ethical theory include S. Toulmin,3 0 R. M. Hare,3 1
H. P. Nowell-Smith,3 2 J. 0. Urmson, Stuart Hampshire, J. L. Austin, and
H. L. A. Hart. Of these men, Hart is the only specialist in jurisprudence.
He is currently Professor of Jurisprudence at Oxford.
Hart is exclusively concerned with the problems of analytical jurisprudence. In the immediately following paragraphs, I shall report what it is
that Hart is trying to do in the field of analytical jurisprudence. I shall
then consider the views of Toulmin and Hare as they relate to the problems
of ethical jurisprudence.
I shall refer to two of Hart's papers. The first paper, "The Ascription of
Responsibility and Rights," appeared in 1951. 3 3 The second paper is Hart's
inaugural address at Oxford, delivered in May, 1953, on the occasion of his
assuming the chair of Jurisprudence. 3 4 I shall use the first paper as a
commentary on the second.
The task of analytical jurisprudence, according to Hart, is to dispel the
perplexities which confront us when we realize that we know perfectly well
how to operate with legal concepts and yet we. do not understand them.
This sort of perplexity cannot be resolved by consulting dictionaries. Nor
can they be resolved by citing examples of rights, contracts, corporations and
the like. A competent student of the law knows the dictionary definitions
and can recognize examples of rights and the like. Yet he is puzzled, and he
is puzzled because legal words, compared with ordinary words, are in different
35
ways anomalous.
29. For more examples and a somewhat general characterization of the new Oxford movement, see Gilbert Ryle, Ordinary Language, 62 'PHILOS. REv. 167, and Morris Weitz,
Oxford Philosophy, id. at 187 (1953). These papers will suggest further reading for those
whose curiosity may be aroused.
30.

31.
32.

AN EXAMINATION OF THE PLACE OF REASON IN ETHICS (Cambridge, 1950).

THE LANGUAGE OF MORALS (Oxford, 1952).

ETHICS (Pelican [A 298], 1954).

IN Looc AND LANGUAGE

145 (A. Flew ed., Philosophical Library, 1951).

33.

ESSAYS

34.
35.

Definition and Theory in Jurisprudence, 70 LAw

Op. cit. supra, note 34.

QUARTERLY

REVIEw 37 (1954).

NATURAL LAW FORUM

One anomaly is illustrated by the words 'legal right.' Hohfeld has distinguished four species under the general category of legal rights: right,
privilege, power, and immunity. Is the word 'right' applied to these four
very different species a mere homonym? We have a pre-analytic conviction
that the word is not a mere homonym, and that there is a principle behind
the application. Yet we are at a loss to say just what that principle is.
Another anomaly of some legal words is that unlike words such as 'chair' or
'horse' they have no obvious counterparts in the world. And so the traditional
theories propose certain unobvious counterparts. The legal Platonists propose
disembodied universals. The American Realists aver that the word 'right'
refers to our predictions as to the probable behavior of courts or officials. The
Scandinavian jurists say that a right is a fictitious entity.
These attempts, according to Hart, are misleading. They formulate the
problems in the form of questions such as these: What is law? What is a
state? What is a right? What is possession? But these are requests for
definitions. These requests, in turn, presuppose that legal concepts are
capable of being defined by specifying necessary and sufficient conditions for
their application. Formulating the problem in this manner, Hart thinks, has
led at certain points to a divorce between jurisprudence and the study of
the law at work. It has created the impression that certain fundamental
legal concepts cannot be elucidated "without entering a forbidding jungle of
philosophical argument." The remedy Hart suggests is to take a fresh look
at the ways in which these legal concepts do their work in the language of
the law as it exists. The philosopher's job is to elucidate these specialized
functions. This is an application of the methodological principle espoused
by Oxford philosophers: to be clear about what law, contract, etc. are is to
be clear about the ways in which the words 'law,' 'contract,' etc. are used in
legal language.
The basic reason why it is futile to try to define legal terms by reference
to necessary and sufficient conditions for their application is that in the
language of the law legal terms perform functions which are radically unlike
the way words or phrases such as 'chair' or 'heavier than' do their work.
This latter class of words is used to describe facts or name publicly observable
things and properties. We are in no doubt as to the general class to which
chairs belong. It is, therefore, possible, if we so choose, to look for the specific
differences between chairs, tables, stools and the like. It is, in short, possible
to give a definition of 'chair' in terms of a genus and a differentia which are
necessary and sufficient for the application of the word. A phrase like 'heavier
than' can also be defined in terms of necessary and sufficient conditions. In
this case, however, the-necessary and sufficient formal conditions are not given

GEORGE NAKHNIKIAN

per genus et differentiam but rather in terms of asymmetry, transitivity, and

identity supplemented by operational (material) conditions involving performances with scales or other apparatus.
Take now the legal use of the word 'contract.' What is a contract? If
we put the question this way, we may be misled either to say that a contract
is a fictitious entity or a Platonic universal or a word which refers to complex
facts. But these theories fail to elucidate the actual work that the word
'contract' does in legal discourse. This is the trouble with erecting a legal
theory on the basis of a definition. The definition fails to explain the actual
function of the word in law; hence the theory based on the definition fails to
be a theory of the law as it exists. This is what makes such theories inadequate.
The first step in the right direction is to examine the use of legal words
in sentential contexts. We should elucidate not 'contract,' but 'A has a contract
with B.' If we omit to look closely into the actual workings of the law,
we may be tempted to think that 'A has a contract with B' states a fact;
that its logical status is no different from 'A has eyes the color of B's.' This
would be a mistake. When uttered by a judge in a law court, 'A has a
contract with B' is neither a factual statement nor a device for evincing or
kindling feelings or expressing or arousing attitudes. It is a conclusion of law.
The characteristic difference between typically legal utterances and
typically factual utterances is that the former are defeasible. An examination
of the defeasible character of legal claims will show that legal words cannot
be defined in terms of necessary and sufficient conditions.
Every lawyer knows that in England and in the United States the law
insists on certain conditions necessary for a prima facie contract. There must
be at least two parties, an offer, an acceptance, a consideration, and in certain
specified types of situations a written document. But the mere existence of
these conditions is not sufficient to establish a contract. There are certain
defenses, the presence of any one of which would either nullify or weaken a
claim. In short, a prima facie claim 'A has a contract with B' is defeasible.
The same point may be illustrated by the following example. This
illustration is illuminating in that it shows an essential similarity between a
legal claim in court and a "non-legal" claim out of court. Someone drops
his wallet. I pick it up, catch up with him and say, "This is your wallet."
Now imagine that the police drive up and arrest the man for having stolen
the wallet. Given this new information, I would no longer say that the wallet
is his. This shows that 'This is your wallet' in this context is not equivalent
to 'This was in your pocket and you dropped it,' nor to any other descriptive
statement. Any descriptive statement which truly describes the facts before
the coming of the police remains true. But I now withhold 'This is your

NATURAL LAW FORUM

wallet.' In the present context, 'This is your wallet' ascribes a right, and
any such ascription is defeasible. Moreover, my unofficial utterance is, nevertheless, like the utterance of a judge in court. It is a conclusion of law.
In a different context, 'This is yours' can function primarily and, indeed,
purely descriptively, as for instance when I say 'Yes' to a patient who is just
coming out of anesthesia and who asks me if the hand he sees on his bedsheet
is his. It is the context that determines the function. In legal contexts,
sentences used to ascribe responsibilities and sentences used to make claims
or confer rights are alike in that they are all defeasible.
Let us return to the example from contracts to see how Hart supports
his thesis that legal concepts are not susceptible of definition by necessary and
sufficient conditions. In the first place, the distinction between the positive
(i.e., necessary) conditions for the prima facie existence of a contract and the
defenses is legal and not formal. Call the positive conditions 'P-conditions'
and the defenses 'D-conditions.' We can always make a conjunction of the
P-conditions with the negated D-conditions. Thus we can say a contract
exists if, and only if, P 1 P 2 P 3 Di D2 D2 ... Dn. Formally, there is no
difference between, say, P, and D1 . If either P1 fails or D1 fails, the contract is either voidable or weakened. But, as the law actually works, there
is a legal difference between the P- and the D-conditions. The P-conditions
are determined by legal precedent to be necessary for the prima facie existence
of a contract. A lawyer does not file action in contract if one of the Pconditions is clearly absent. The D-conditions usually come up later when
the case is before the judge and jury. Legally, then, the list of P-conditions
is complete. This is not to say, of course, that decisions as to the existence
or absence of any of the P-conditions are mechanical. Words like 'offer'
and 'acceptance' are vague. Their application sometimes calls for legal
decision. But this vagueness is also shared by the D-conditions. The significant respect in which the P- and D-conditions differ is that the D-conditions
are not spelled out in exact detail. The conjunction P1 P2 P3 D1 D2 D 3
. Dn
D is open-ended. In a book on contracts we may find what looks like
an exhaustive list of defenses. But the language in which they are stated does
not supply the judge with mechanical criteria of application. For example,
one defense is undue influence. This is an umbrella term which covers a
multiplicity of particular facts which may have nothing in common except
that they come under the same rule. It will not do to say that the term 'undue
influence' is meant to rule out some positive condition such as the absence of
a state of mind characterized as 'full and free consent.' The judge decides
only on the publicly supportable evidence. His job is not to take the evidence
of economic pressure. or social pressure as evidence for the existence of a

GEORGE NAKHNIKIAN
common state of mind induced by these two dissimilar types of coercion. The
legal cash value of undue influence is just the proved fact of some particular
pressure, social, economic or otherwise: "...
the defense, e.g., that B entered
into a contract with A as a result of the undue influence exerted upon him by
A, is not evidence of the absence of a factor called 'true consent,' but one of
the multiple criteria for the use of the phrase 'no true consent."' 3 6 To say,
then, that P 1 P 2 P 3 D1 D 2 53 is open-ended is to call attention to this fact,
namely, that no exhaustive and detailed list of defenses can be supplied
antecedently to any particular occasion of a judge's decision. This is different
from saying that umbrella terms are vague or ambiguous. When new defenses
are legally made to fall under the rule of undue influence, this in no way
affects the vagueness or ambiguity of the phrase 'undue influence.'
This peculiarity of the open-endedness of the defeating conditions rules
out the possibility of defining a word such as 'contract' as used in the law
by reference to necessary and sufficient conditions. Hence any theory which
rides upon the back of such definitions is bound to misrepresent the practice
and procedure of the law.
The proper method of elucidating such legal words as 'contract,' 'right,'
and the like is to ask not: What is a contract? What is a right? The proper
way is first to elicit the conditions under which decisions such as 'A has a
contract with B' or 'A has a right with respect to B' are true and, second,
to describe the peculiar job that such utterances perform in legal discourse.
As a model of this sort of analysis, Hart gives an elucidation or analysis of
'a legal right.'
(1) A statement of the form 'X has a legal right' is true if the following
conditions are satisfied:
(a) There is in existence a legal system [with all that this implies
by way of general obedience, the operation of the sanctions of the
system and the general likelihood that this will continue].
(b) Under a rule or rules of the system some other person Y is, in
the events which have happened, obliged to do or abstain from
some action.
(c) This obligation is made by law dependent on the choice either
of X or some other person authorized to act on his behalf so that
either Y is bound to do or abstain from some action only if X (or
some authorized person) so chooses or alternatively only until X (or
such person) chooses otherwise.
(2) A statement of the form 'X has a right' is used to draw a conclusion
3T
of law in a particular case which falls under such rules.
36.

Op. cit. supra, note 33.

37.

Op. czt. supra, note 34 at 49. The bracketed material is interpolated from id. at 42.

NATURAL LAW FORUM

There are several points worth noticing in this elucidation. In the first
place, the conditions (a), (b), (c) are necessary but not also sufficient for
defining 'a legal right.' Y's obligation mentioned in condition (b) depends
upon the absence of D-conditions. Y's lawyer can argue that although all the
circumstances on which X's claim could succeed are present, yet in the
particular case the claim should not succeed because other circumstances are
present which brings the case under some recognized head of exceptions. In
short, X's claim is defeasible. Thus, Hart's elucidation of 'a legal right' is
not in terms of necessary and sufficient conditions.
In the second place, Hart says that a statement of the form 'X has a right'
is used to draw a conclusion of law. This merits some attention because it
is based upon the proposition that utterances in legal discourse which make
claims (This is mine), yield claims (Yes, this is yours), or give decisions (A
owes B ten dollars) are performing a job altogether different from statements
of fact or phrases which we use to influence or evince emotions. In the
language of lawyers 'This is mine' or 'X has a right' are 'operative words.'
By the utterance of such sentences, especially in the present tense, we often
do not describe but actually perform or affect a transaction. With them
"we claim property rights, confer or transfer such rights when they are claimed,
recognize such rights or ascribe such rights whether claimed or not." 38
Let me sum up by reviewing the four characteristics which Hart says
constitute the distinctive features of legal words like 'right,' 'contract,' or
'duty.'
(1) An utterance 'X has a right' tacitly assumes "a special and
very complicated setting, namely, the existence of a legal system. . . . But
though this complex situation is assumed in the use of these statements of
rights or duties they do not state that it exists." 3 9 Nor do they make predictions that the rules will be enforced. "No doubt, when someone has a legal
right a corresponding prediction will normally be justified, but this should
not lead us to identify two quite different forms of statement." 40 (2) 'X
has a right' not only presupposes the existence of a legal system but it also
has a special connection with a particular rule of the system. This can be
seen when we ask: 'Why does X have a right?' But again, 'X has a right'
does not state the relevant rule to which we appeal to answer 'Why does X
have a right?' One who says 'X has a right' has drawn a conclusion from
the relevant and unstated rule and from the relevant and unstated facts of
the case. 'X has a right' is "the tail-end of a simple legal calculation: it
records a result and may be well called a conclusion of law. It is not there38.
39.
40.

Op. cit. supra, note 33.

Hart, op. cit. supra, note 34 at 42.
Ibid.

GEORGE NAKHNIKIAN
fore used to predict the future as the American Realists say; it refers to the
present . . . but unlike ordinary statements does not do this by describing
present or continuing facts." 4 1 (3) The assertion 'X has a right' stated by
a judge in deciding the case has a different meaning than the like statement
uttered out of court. The judge's utterance is official, authoritative, and, let
us assume, final. The utterance out of court is none of these. Still, in spite
of these differences, the statements are alike; they are both conclusions of
law. Be they official or unofficial, they are decisions made by appealing to
relevant rules and relevant facts, but they neither mention nor describe either
the rules or the facts. They thus perform a special job, which is different
from the job done by descriptive or emotive utterances. (4) "In any system,
legal or not, rules may... attach identical consequences to any one of a set
of very different facts." 42 Take the game of baseball: you are "out" if
you either struck out, popped out, or are tagged out. No two of these ways
of being "out" need have anything in common except that they come under
the same rule which attaches identical consequences to them, namely, that you
stop playing until your next turn comes up.
What Hart is doing here is typical of the Oxford analysts. Philosophical
analysis aims to elucidate language, and the way to elucidate is to see, in
typical contexts, how whatever you are trying to elucidate is typically
employed. Thus, the evaluative use of 'good' is to prescribe or commend.
Any analysis which overlooks this linguistic fact or proposes a use for 'good'
not in conformity with its standard use is ipso facto wrong. The task of the
philosopher is not "to devise or sanction linguistic usages-especially when
this activity involves misrepresenting our existing concepts. It is more his
business to analyze the sense of [the concept in question] (and the criteria
[for its application]), which are already implicit in our ethical discussions, and
whose existence cannot be explained away . . ." 43
The Oxford analysts deny that ethical words are, simply descriptive or
simply prescriptive. They maintain, however, that the prescriptive meaning
of these words is primary. R. M. Hare, for instance, argues that the prescriptive sense remains constant for every class of objects whereas the descriptive
sense varies with each class; that the descriptive sense can be made to change
by using the prescriptive sense, but not vice versa; and that it is possible to
teach the typically prescriptive sense of 'good' in total isolation from any
of its descriptive functions. Moreover, when 'good' is used purely descrip41.
42.

Id. at 43.

43.

S. TOULMIN,

Id. at 44.

bridge, 1950).

AN EXAMINATION OF THE PLACE OF REASON IN ETHICS 40-41

(Cam-

NATURAL LAW FORUM

tively, it can no longer be made to perform its special evaluative functionnamely, to commend. 4 4 Thus, the Oxford philosophers do not simply deny
that ethical utterances are judgments capable of being true or false. They
deny that ethical or evaluative utterances can be simply translated into naturalistic "is" statements. Their arguments are designed to prove that such
translations do violence to the ways in which evaluative utterances are in
fact used.
Let us recall, once again, their basic methodological principle: To be clear
about what, e.g., goodness is, is to be clear about the ways in which the word
'good' is used in our language. An examination of these uses shows, according to them, that 'good' does not name a property: that in evaluative utterances the word is used to commend; and, further, that there are empirical
criteria for providing a justifying ground for commending specific classes of
things. For instance, the criteria for a good strawberry are different from
the criteria for a good automobile; but the word 'good' in 'good strawberry'
and in 'good automobile' is univocal. When we utter the sentences 'This
is a basket of good strawberries' and 'This is a good automobile,' anyone
who understands the word 'good' (evaluative) understands that the sentences
are being used to advise that the basket of strawberries and the automobile
be chosen. This understanding does not presuppose familiarity with the
criteria for good strawberries (being ripe, red, sweet, large, juicy, firm, etc.)
or for good automobiles (safe, economical, durable, etc.). Thus, in the
assertion that this is a good automobile, the word 'good' is not simply a
shorthand for 'safe, economical, durable, etc.' If it were, say the Oxford
analysts, then the sentence 'This is a good automobile' would be equivalent
to the sentence 'This is an automobile and it is safe, economical, durable,
etc.' If this latter sentence is to qualify as a naturalistic "is" sentence, then
none of its extralogical vocabulary is an evaluative term. But then the
naturalistic sentence cannot be equivalent to the original evaluative sentence;
for the original sentence is used to evaluate or commend, while the naturalistic sentence can be used only to describe. Nor is the word 'good' the
name of some nonnatural value property; for if it were, we could not use
the sentence 'This is a good automobile' to commend the automobile; we
could only succeed in saying that it has a certain value property, and this
again, is to describe and not to evaluate. Evaluation and description are very
different linguistic activities.

The Oxford philosophers' distinction between the prescriptive or commendatory meaning of 'good' and other evaluative words and the empirical
44. R. M.

HARE, THE LANGUAGE OF MORALS 118-26, 147, 150 (Oxford, 1952).

GEORGE NAKHNIKIAN

criteria for their application is very similar to Stevenson's "second pattern

of analysis." Stevenson also maintains that the evaluative meaning, for
instance, of 'good' in 'good strawberry' and 'good automobile' is univocal.
What the intuitionists call the "good-making characteristics" and what the
Oxford analysts call the criteria Stevenson calls the "rich and varied
descriptive meanings for the ethical terms, in addition to emotive meaning."
Stevenson's "emotive meaning" corresponds to the Oxford analysts' "commendatory use."
There are, then, these three fundamental conclusions about which the
Oxford analysts and Stevenson agree: ethical or evaluative words are not
simply descriptive or simply prescriptive; however, the prescriptive (commendatory, emotive, etc.) meaning of these words is primary; ethical or
evaluative words, in their primary sense, are not names of properties or
attributes, either natural or nonnatural. The differences between the Oxford
analysts and Stevenson are chiefly in their method of philosophizing. The
Oxford analysts eschew philosophical theories. They would reject, for
example, such philosophical theories of meaning as "the meaning of a sign is
the disposition to arouse certain kinds of psychological responses" (C. L.
Stevenson and C. W. Morris); "the meaning of a sentence is the method of
its verification" (Vienna Circle); "a sentence is cognitively meaningful if,
and only if, it is either empirically confirmable or logically certifiable" (later
positivism and Logical Empiricism). The Oxford philosophers operate on
the principle that the most direct and obvious way to be clear about concepts
is to elucidate the ways in which they are used. Indeed, they maintain that
unless we are clear about the concepts in the language we actually use, we
cannot be clear about concepts we may wish to introduce in a reconstructed
language.
In order to forestall misunderstanding, it must be pointed out that the
Oxford analysts use the word 'use' in a technical way. How a concept is
used is not discovered by simply observing the ways in which people do talk.
The uses of a word are elucidated by describing their logical relations with
other concepts. For example, if the logician wishes to define the word
'number' as this word is used by mathematicians, he has to observe the actual
use mathematicians make of mathematical statements about numbers. Or,
if an analytical jurist wishes to elucidate the phrase 'legal right,' he has to
observe the ways in which statements about legal rights are used by judges
and lawyers. He has to notice how the concept of legal right is related to
other concepts, e.g., privilege, immunity, duty. He has to observe what
entailments are warranted within legal discourse among statements containing
'right,' 'duty,' 'privilege,' 'immunity,' and the like. How wide a description

NATURAL LAW FORUM

of these relations is called for depends upon what puzzles we are trying to
clear up. The foregoing extensive report of H. L. A. Hart's views is a case
in point. According to the Oxford analysts, the philosopher differs from
the plain man not in having any privileged insights into the nature of things,
but in having achieved clarity by cultivating sensitivity to the contours and
nuances of the language within which philosophical perplexities arise and
must be resolved.
This conception of philosophy entails the rejection of normative ethics.
Traditionally, normative ethics has sought rationally grounded moral rules of
conduct. Differences have existed as to the nature of the rational grounds of
morality because of differences as to what reason is. The Oxford analysts,
agreeing with other non-cognitivists, deny that any justification grounded in
reason can be meaningfully required for adopting ultimate norms. Ultimate
moral commitments are decisions, not cognitions. 45 Compare two hypothetical situations. In one of them, we are faced with choosing between two
different theories about the physical world. To say that they are two different
theories is another way of saying that the two theories will not agree in all
the predictions and explanations they give. This means, in turn, that in
principle there would be facts we could cite for justifying our choice of one
of the theories, or neither, if neither theory accounted for the facts.
Suppose now that we are faced with a choice between two rival moral
codes. Again, to say that they are two different moral codes is to say that
they give different answers to the question "How should I live?" For, if
they give the same answers to this question, we would have to recognize that
they are in substance identical and only verbally different formulations. The
choice of one of the rival codes involves the making of an ultimate decision.
There is, of course, a difference between decisions based upon careful considerations and decisions made haphazardly. For the purpose of our illustration,
let us assume that our choice of one of the rival codes was carefully considered.
We reflected long and in our cooler moments; we took into account all the
facts to the best of our knowledge; in the light of our past experience, we
compared the kind of life we would live by one of the codes with the kind of
life we would live by its rival. Having done all this we found that we prefer
one of the two ways of living. We were committed to the moral code enjoining that way of living. Everyone would admit that such a decision is rational
and not capricious or perverse. But it is conceivable that two people might
arrive at different decisions after having gone through these careful considerations. How can we say that at most one of them is rationally justified? We
45.

See, e.g., Hare, op. cit. supra, note 44 at 69 et passim.

GEORGE NAKHNIKIAN

cannot; for, by hypothesis, each has made a rationally grounded choice. The
basic mistake of traditional normative ethics has been the belief that there is
a higher criterion for judging ultimate commitments which are rational in
the above sense. According to Oxford philosophers, there are good reasons
for making ultimate moral commitments; but these good reasons are not
objective in the sense that traditional normative ethics would have it. Ultimate
moral choices, although based on cognitions, are themselves not cognitions
but decisions. And the moral principles which are the linguistic correlates
of these decisions are not descriptions of scientific or metaphysical states of
affairs. They are injunctions as to how to live. This is the fundamental
reason why it is proper to classify the Oxford analysts as non-cognitivists.
As in the case of Stevenson and the logical positivists the non-cognitivism
of the Oxford philosophers does not prevent them from uttering normative
injunctions. Moral exhortation is one thing. Philosophical analysis is something else. Moral exhortation is not the proper function of a philosopher in
the role of a philosopher. Like everyone else, the non-cognitivists, too, have
moral convictions. What needs to be emphasized, however, is that on noncognitivist views these moral convictions are not objectively true statements
describing scientific or metaphysical facts.
The extrusion of normative ethics from philosophy makes a difference to
ethical jurisprudence. If normative ethics is not a theoretical science, the
validity of legal norms cannot be established by "higher" objective norms
discovered by recondite philosophical investigations. In particular, the rejection of normative ethics amounts to a wholesale removal of natural law
theories from jurisprudence.
Let us recall that natural law theorists are ultimately in search of a consistent way of deriving the "ought" from the "is." They seek to do this
in such a way that the objective validity of one and only one ethical code
would follow as a corollary. These theories are overtly or covertly premised
upon the assumption that there is such a thing as the nature or essence of
man. This premise coupled with the premise that man ought to live in
accordance with that essence implies that there is one and only one correct
way to live. This amounts to believing in the possibility of normative
ethics. Even though some Oxford philosophers countenance the passage
from the descriptive ("is") to the prescriptive ("ought"),46 this is not enough
to sustain natural law. All Oxford philosophers agree that there is no "nature
of man" in the sense just described, and therefore that normative ethics is
not possible. This is the root of their quarrel with natural law.
46. E.g., S. Hampshire, Fallacies in Moral Philosophy, 58 MIND 466 (1949) and Toulmin,
op. cit. supra, note 43.

NATURAL LAW FORUM

Even a sophisticated defense of natural law such as that by A. P.

d'Entr&ves is not immune to this objection. Professor d'Entr&ves 4 7 concedes
the force of Hume's and Kant's objections to deducing the "ought" from
the "is." He thinks that the difficulties they point out can be avoided by
following Giambattista Vico's suggestion that the "is" (verum) and the
"ought" (certum), the elemeni of fact and the element of authority, are
inseparably fused in every law. This would circumvent the need to deduce
the one from the other. But the problem remains in a different form. It
now becomes the problem of showing how the element of fact supports the
element of authority. Does the fact that the Latin paterfamilias would have
very strong feelings against the English common law in the matter of testaments prove that the authority of the law is invalidated? What is the relation
of these very strong feelings to what "reason" reveals as to the comparative
claims of family duty and individual freedom? What if an English paterfamilias had very strong feelings diametrically opposed to the feelings of his
Latin counterpart? Let us grant, for the sake of the argument, that if we
look close enough we will find a purpose (a value) or a congeries of purposes
that every law is intended to realize. But there are laws intended to implement Nazi values and laws intended to implement humane values.
For my part [d'Entrves writes], I believe that in every human society, in
fact in "human nature" itself, there are certain ultimate standards or
values which determine approval or disapproval, assent or dissent; and
I believe that it is these same values that determine our judgment as to
whether a law is "just" or "unjust": in other words-to use a very
ancient language that seems perfectly appropriate at this point-whether
we are bound in conscience to obey it or not. To ascertain such values
may be thought a modest-or an immodest-undertaking. Yet I think
that, failing all other ways, such an undertaking is well worth attempting,
and may even in the end
lead us to a much greater amount of agreement
48
than we might expect.
If this is what d'Entrves's defense of natural law comes to, I do not see that
it is in any way different from what the non-cognitivists say. They, too, are
willing to entertain the hypothesis that, upon careful consideration, every
man might make identical fundamental moral commitments. But I have
been assuming all along that the point of natural law theories is not this
hypothesis. It is, rather, that whether people do agree on morals or not,
there is a set of moral principles which they ought to accept, and that what
these principles are can be objectively established. This claim alone would
give content to the first basic tenet of natural law theories, namely, to the
47. 1 NATURAL
48. Id. at 45-6.

LAw FORUM 5 (1956).

GEORGE NAKHNIKIAN
tenet that normative ethics is a science. In matters of science there are criteria
entitling us to say that even though a certain individual or group disbelieves
a certain statement, the evidence is such that he or the group ought to believe
that statement. We do not wait for universal agreement before we feel that
we are justified in making this judgment. I do not see that d'Entrbves has
succeeded in showing that analogous judgments can be made in morals. The
non-cognitivists argue that they cannot. The Oxford non-cognitivists argue
this point by trying to show that the logic of the language of morals is
radically different from the logic of the language of science.
The Oxford rejection of normative ethics has a second consequence for
ethical jurisprudence. Philosophers of the Oxford persuasion would not be
too happy with the generality of the central question of ethical jurisprudence.
As it is usually formulated, that question is: What is the ideal or what are
the ideals which we ought to realize through law? They would rather prefer
to ask less general questions: What sort of law ought we to pass when faced
by a more or less definitely specifiable situation X? According to Stephen
Toulmin, for instance, such a question can be morally answered on two
grounds alone: (a) That we ought to do Y in situation X, because this is
what some principle of the moral code of the society in which situation X
exists demands; or (b) We ought to do Y because that is most conducive
to the welfare of the others in the community.49 We cannot, Toulmin insists,
ask why we should give (a) or (b) as an ultimate good reason, for to give an
ultimate good reason is to give either (a) or (b). By way of interpolation,
let me suggest that (b) is more fundamental than (a). Otherwise we would
have difficulty in explaining the fact that we sometimes approve moral rebels
in a given society.
The moral prophet's exhortations derive their
authority from the fact that they are proposals made in the name of an ideal
transcending both the merely personal preferences of the moral prophet and
the already existing moral rules. Let me further suggest that, upon close
examination, (b) may be found to be an analytic presupposition of the
concept of morality. That is to say, it may be that to be moral entails to
live by (b). Whether this is so or not can be determined only by a careful
examination of the ways in which we use the word 'moral,' a task which
I cannot undertake here. If it should be true that (b) is analytically related
to the concept of morality, then it would follow that Y's being conducive to
the welfare of others in situation X is a logical and not just a causal reason
why Y is our duty. The logic, however, would be imbedded in our linguistic
uses. As philosophers we would simply make explicit what these uses are.
49.

ToULMIN, op.

cit. supra, note 43 at 156.

NATURAL LAW FORUM

This is an altogether different conception from the one according to which
the job of the philosopher is to discover, by exercising his reason, ultimate
norms woven into the fabric of reality. It is this latter sense of objectivity
of ultimate norms that Oxford philosophy eschews. Once this is understood,
the Oxford philosophers would not deny that there is objectivity in morals in
the sense that there are criteria for justifying moral utterances. What they
would deny is that these criteria are discovered by "metaphysical insights"
or "rational intuitions" or by empirical science.
IV
Now we come to the Neo-Kantians. I think two commitments constitute
a sufficient condition for classifying an ethical philosopher as a Neo-Kantian.
First, he must hold that there is a single principle which is the categorical
imperative of conduct, where by 'conduct' is meant activity capable of being
selective and reflective. Second, he must hold that this principle is demonstrably rational and the method of demonstration is purely philosophical and
without empirical admixtures. 50 H. J. Paton,5 1 and C. I. Lewis 5 2 are
Neo-Kantian in ethics, but beyond the fact that they satisfy the sufficient
conditions of Neo-Kantianism they have hardly anything else in common.
Paton accepts Kant almost literally. Lewis is a naturalist in value theory
and he takes far-reaching exceptions to certain fundamental Kantian doctrines.
Furthermore, his manner of demonstrating the categorical imperative of
rationality and his statement of the imperative itself are very different from
Kant's.
Lewis has said that "valuation is always a matter of empirical knowledge.
But what is right and what is just, can never be determined by empirical
facts alone." 5 3 In short, value judgments are distinct from ethical judgments. The former can be analyzed in empirical terms; the latter cannot.
Lewis agrees with naturalists that 'good' can be defined empirically and that
value judgments are empirically true or false. All this he argues in great
detail and very plausibly in An Analysis of Knowledge and Valuation.
However, he says that 'right' cannot be defined empirically; that correspondingly, judgments of obligation, as distinct from judgments of valuation, "can
never be determined by empirical facts alone." Some critics have said that
A corollary of this is that obligation words are not to be defined in empirical terms.
THE CATEGORICAL IMPERATIVE (Chicago, 1948).
52. AN ANALYSIS OF KNOWLEDGE AND VALUATION (Open Court, 1946); "The Rational
Imperatives" in VISION AND ACTION (Sidney Ratner ed., Rutgers, 1953). Lewis' most recent
book on ethics is THE GROUND AND NATURE OF THE RIGHT (Columbia, 1955).
53. AN ANALYSIS OF KNOWLEDGE AND VALUATION 554 (Open Court, 1951).
50.

51.

GEORGE NAHKNIKIAN

Lewis has placed himself in an untenable position. The gist of the charge
is this: Lewis divides all judgments into analytic (and a priori) and synthetic
(and a posteriori). He explicitly denies the existence of synthetic a priori
judgments. Now judgments of valuation are taken care of. They are said
to be empirical, hence synthetic. But how about judgments of obligation?
Not all of these are analytic. 'No rule of action is right except one which is
right in all instances, and therefore right for everyone,' is analytic, according
to Lewis. But is 'Truth-telling is right' also analytic? If not analytic, and
not synthetic (empirical) because it is a judgment of duty, what is it?

Lewis has yet to publish his work on Ethics. My own prognosis is that he
will be able to show that his critics have somehow missed the point of what
he is trying to say. But prognosis aside, his position in his publications to
date is something like this.
In An Analysis of Knowledge and Valuation 5 5 Lewis says that there is a
connection between the intrinsically good and the morally imperative, but
'good,' meaning 'useful for conducing to satisfaction,' is something different
from 'good' meaning 'morally justified.' In his more recent paper, "The Rational Imperatives," he tells us what the categorical imperative of conduct is:
The basic imperative is... simply that of governing oneself by the advice
of cognition, in contravention, if need be, to impulsions and inclinations
of feeling. .

.The most comprehensive imperative of rationality may

be called the Law of Objectivity: so conduct your deliberate activities as

to conform them to the objective actualities cognitively signified by your
representational experience, and not by reference to any impulsion or
solicitation exercised by the affective quality of experience as felt ...
This Law of Objectivity may be otherwise put: conduct yourself with
reference to those future eventualities which cognition advises that your
activity may affect, as you would if the effects of it were to be felt at
this moment of decision, with the poignancy of the here and now realized,
instead of the less poignant feeling which qualifies representation of the
future and possible. 56
Lewis says that the basic rational imperative cannot be proved by appeal
to some other imperative. Otherwise that other imperative would be basic.
The demonstration that the basic imperative cannot be repudiated rationally
U 7
is dialectical.
54. M. G. White, Value and Obligation in Lewis and Dewey, 58
See also A. I. Melden, On the Method of Ethics, 45 JOURNAL OF

PHiLOS, REv. 321 (1949).

PHILOSOPHY 169 (1948);

R. Browning, On Professor Lewis's Distinction between Ethics and Evaluation, 59

ETHICS

95 (1949).
55. At 552.
56. "The Rational Imperatives" in VISION AND ACTION 158.
57. Lewis's argument on this point is very compact. In what follows, I have tried to
spell out what I think Lewis has in mind.

NATURAL LAW FORUM

Consider the utterance of Metrodorus of Chios, an ancient skeptic: "I

deny that we know whether we know anything or whether we know nothing.
I say that we do not even know what is ignorance and what knowledge; that
we have no knowledge whether anything exists or nothing does." 5 8 There
is a contradiction-in-use here. Metrodorus is using his utterance to make
some kind of cognitive claim. Otherwise he is talking just to hear himself
talk. But if what he says is true, he is in no position to use his utterance
for making a cognitive claim of any sort, because his cognitive claim conflicts
with what the utterance says. It says that no one, including Metrodorus, is
in a position to make cognitive claims of any sort. This is not a purely formal
contradiction. It is, instead, an incompatible opposition between what Metrodorus' utterance says and his using that utterance to make a cognitive claim
on his own behalf.
A similar difficulty confronts those who would deny the basic imperative
of rationality. Lewis's formulation of that imperative is: Govern yourself
by the advice of cognition. For purposes of illustration, let us state the first
person singular version of this imperative: (a) I ought to govern myself
by the advice of cognition. The denial of (a) is: (b) I may abstain from
governing myself by the advice of cognition.
To see the difficulty, notice the following points. First, the denial of a
normative statement is normative. This fact is easy to show. Assume that
'A ought to do X' is normative. Its denial, 'It is not the case that A ought
to do X' is equivalent to 'A may abstain from doing X.' Assume also that
'A ought not to do X' is normative. Its denial 'It is not the case that A
ought not to do X' is equivalent to 'A may (is permitted to) do X.' But
the permissive 'may' and 'may abstain from' are definable in terms of denial
and 'ought.' Therefore, if 'A ought to do X' and 'A ought not to do X'
are normative, so are their denials. These facts hold also in the case of
universal normatives such as 'Everybody ought to do X,' 'Nobody ought to
do X.' Their respective denials are 'Somebody ought not to do X' and
'Somebody ought to do X.' Therefore (b), the denial of Lewis's basic rational
normative, is normative.
But this is a normative utterance implicated in a contradiction like that
of Metrodorus. In adopting (b), I have adopted a normative rule which
does not acknowledge the obligatoriness of any rules. If I do not recognize
it as obligatory to heed the advice of cognition in governing myself, my
conduct cannot be subject to the critique of objective rightness. Objective
rightness requires the distinction of right and wrong. But a necessary condi58.

CICmO, QUAESTIONEs ACADEMICAE II, 23.

GEORGE NAKHNIKIAN

tion of the objective right whether it is a question of prudence or of justice,

is that whatever is objectively right should be cognitively warranted. Objective
rightness has to take account not only of the moral worth of the agent's
intention but also of the intention's cognitive validity. (Lewis defines the
intention of an act as all the consequences which the doer expects will follow
from the act.) By adopting (b), I have in effect adopted a rule which makes
it not obligatory that I criticize my conduct as prudent or imprudent, just or
unjust. In short, by adopting (b), I have adopted a rule of obligation which
says that I may refrain from acting by rules of obligation.
Otherwise put, the denial of (a), Lewis's basic rational imperative, is
equivalent to the assertion of (b). But he who denies (a) (i.e., asserts (b))
nevertheless assumes (a) in his denial of it. For if I assert (b) not on the
advice of cognition (i.e., without obeying or assuming (a)), my rule is no
more than a gratuitous ejaculation. If I assert (b) on the advice of cognition,
I am assuming the very rule that I have denied in my denial of (a). The
contradiction is between the attitude of adopting (b) and what (b) says.
I am saying that it is not the case that I ought to govern myself in accordance
with normative rules, and to say this I am using a normative. So that
there is, after all, at least one normative which I recognize, whereas if what
it says is so, I have no business recognizing normatives.
The gist of this dialectical argument is that no rational being can rationally
repudiate norms exhorting rationality.
If my reading of him is correct, Lewis's conception of the rationality of
moral principles accomplishes the following: when he says, at the end of
An Analysis of Knowledge and Valuation that "What is right and what is
just, can never be determined by empirical facts alone," Lewis has, I take it,
no intention of invoking synthetic a priori connections or supernatural or
otherwise nonnatural properties of duty and right. What is right and what
is just can never be determined by empirical facts alone because the conceptions of right and duty are analytically related to rule-governed behavior,
and the justification of rule-governed behavior is not a matter of empirical
fact but of dialectical proof. He argues nonempirically (dialectically) for
the objectivity of universal imperatives of conduct, but insists that the application of the imperatives analytically requires empirical knowledge.
Now it is impossible to state the consequences of Neo-Kantianism in general for jurisprudence. The sufficient conditions which I have specified for
classifying an ethical theorist as Neo-Kantian leave untouched detailed
commitments which are much more crucial for analytical and ethical jurisprudence. Paton's type of Neo-Kantianism has exactly the same consequences
for jurisprudence as Kant's ethical theory, for Paton never deviates from

NATURAL LAW FORUM

Kant. To students of jurisprudence the Kantian position in jurisprudence is

well known. Repetition here would be gratuitous. But a "Neo-Kantian"
like Lewis has a very different story to tell.
Lewis's value theory is thoroughly naturalistic. But he makes a sharp
distinction between value concepts (good, bad) and obligation concepts
(right, just, obligatory). From what he has said to date, it would seem that
Lewis would disagree with naturalists who propose empirical definitions of
obligation-words. The analytical jurists who are interested in Lewis's theory
of obligation will simply have to wait, like the rest of us, until he publishes
his book on Ethics. So will the student of ethical jurisprudence have to
wait. But some things are already clear. Lewis will certainly make room
for normative ethics and he will take as more basic the concept of the
morally just as against the legally just. Most philosophers would recommend to students of jurisprudence a careful study of whatever Lewis has
to say.
The student of jurisprudence who becomes interested enough in these
issues will find a vast literature in which, with great skill and in great detail,
the various positions which I have sketched have been criticized and defended.
This literature is growing daily. And, if the non-philosopher is bewildered
by this embarrassing wealth of disagreement in contemporary ethical theory,
he may be reassured by the fact that some of the ablest contemporary
philosophers are devoting at least part of their time to the issues we have
been discussing and that a good deal of progress has been made already
toward clarifying many of the perplexing questions in ethical theory.